[1983] OLRB Rep. May 627
1273-82-R International Brotherhood of Painters and Allied Trades - Local 1819 - Glaziers, Applicant, v. C T Windows Limited, Respondent.
BEFORE: D. F. Franks, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.
APPEARANCES: M. Zigler and John Kemp for the applicant; R. A. Werry for the respondent.
DECISION OF THE BOARD; May 19, 1983
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
In a previous decision dated November 22, 1982, the Board directed this matter to be listed for hearing to deal with the relationship between the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980 c. 24 and the bargaining unit and list of employees in the present case. The Board heard the representations of the parties on this matter. This case, however, goes far beyond the relationship between the Labour Relations Act and the Apprenticeship and Tradesmen s Qualification Act, but rather it goes to the very heart of the Board's typical bargaining unit descriptions in the construction industry, and the meaning which is to be attached those units.
We shall begin by recapping the issues which were dealt with in the Board's decision of November 22, 1982 referred to above. The applicant trade union in this matter is the Glaziers Local of the Painters Union. That local is part of a designated employee bargaining agency dated April 4, 1978 consisting of the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades, and it bargains for the trade of glaziers pursuant to the provincial bargaining legislation in the construction industry. As a consequence the present application for certification was made pursuant to section 144(1) of the Labour Relations Act. The bargaining unit requested is a bargaining unit of all glaziers and glaziers' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and in its previous decision the Board found that the appropriate unit was the unit requested by the applicant, together with the sectors other than the industrial, commercial and institutional sector for Board area 8.
The bargaining unit having been determined by the Board, the applicant at the first hearing in this matter, did not dispute the position taken by the respondent that none of the three persons in the employ of the respondent could be characterized individually as either journeymen glaziers or apprentice glaziers. Indeed, the position of the respondent was that the three persons employed on the job site on the date of the making of the present application had no qualifications whatsoever as "glaziers". Only two of the three people had minor work experience doing the type of installation that was being performed and the third employee had no experience whatsoever. Notwithstanding this lack of experience, it is not disputed that the employees in question were doing "glaziers' work", that is, they were doing work which would normally fall within the scope of the glaziers provincial agreement.
In this context counsel for the respondent referred the Board to the Irvcon Roofing and Sheet Metal (Pembroke) Ltd. 19811 OLRB Rep. Nov. 1594 decision. Counsel argued that on the basis of that decision the Board should find that there are no glaziers nor glaziers' apprentices in the employ of the employer and that, therefore, there are no employees in the bargaining unit, and that the Board therefore has no jurisdiction to certify the applicant trade union.
In the Irvcon decision the Board had refused to include on a list of employees in the bargaining unit three employees who were performing sheet metal work, but who were neither certified tradesmen nor registered apprentices pursuant to the Apprenticeship and Tradesmen's Qualification Act. The basis for such a decision was section 10 of the Apprenticeship and Tradesmen's Qualification Act which prohibits persons other than certified tradesmen or registered apprentices from performing work in a certified trade. The Board, in effect, refused to recognize them as employees in the bargaining unit because they were clearly not lawfully employed in the performance of sheet metal work in view of the Apprenticeship and Tradesmen's Qualification Act.
In the present case, the glazier and metal mechanic, like the sheet metal worker, has been designated as a certified trade under the Apprenticeship and Tradesmen Qualification Act. As noted above, the Board listed this matter for a second hearing to deal with the effect of the Apprenticeship and Tradesmen's Qualification Act on the present application. At the second hearing in this matter, the Board heard the evidence of Mr. Leslie F. Gordge, the General Manager, Client Group and Customer Service Skills Development Division, Operations Branch of the Ministry of Colleges and Universities. Mr. Gordge has held a number of positions with respect to apprenticeship and training since 1965 when the operation was still part of the Ministry of Labour. He explained that, as the Board noted in the Irvcon decision, the main prohibition of the Apprenticeship and Tradesmen's Qualification Act is set out in section 11(2). That section reads as follows:
"No person, other than an apprentice or a person of a class that is exempt from this section or a person referred to in subsection (4), shall work or be employed in a certified trade unless he holds subsisting certificate of qualification in the certified trade."
There are two ways in which the operation of section 11(2) may be circumscribed. One way is for the directive pursuant to section 5(b) to exempt certain matters from the operation of section 11(2). The other way is for the specific regulation to contain a section exempting sections 9, 11(2) and 4 of the Apprenticeship and Tradesmen's Qualification Act. Mr. Gordge explained that the inclusion of such a provision in the regulation certifying a trade was at the root of the distinction between compulsory and voluntary trades. Thus, in the present case, Ontario Regulation 39 which regulates the glazier and metal mechanics as a trade contains the following sections:
"7.-(1) Section 9 and subsections 11(2) and (4) of the Act do not apply to a person who works or is employed in the certified trade.
(2) Section 10 and subsection 11(3) of the Act do not apply to an employer in the certified trade."
It is this provision in the regulation dealing with glaziers and metal mechanics which makes the trade a "voluntary trade". That is to say it makes certification of tradesmen a voluntary matter and does not prohibit a person from working in the trade nor does it prohibit an employer from employing a person without the appropriate credentials from the Director of Apprenticeship. In contrast, the trade of sheet metal worker (the designation of the sheet metal worker, Ontario Revised Regulations of Ontario, O.R. 57) does not contain any provision equivalent to section 7 of Regulation 39 dealing with glaziers and, thus, sheet metal worker is a compulsory trade and section 11(2) of the Act applies to such a trade.
Mr. Gordge also explained that the Director, in certain circumstances would exempt very specific groups or classes of people covered by a mandatory compulsory regulation under section 5(b) of the Act. His evidence, however, was that that provision was not used to exempt a whole trade from section 11(2) of the Apprenticeship Act but rather specific elements of the designated trade. The example he gave in this regard was, for instance, electrical work in relation to the elevator construction industry. In relation to the construction industry as a whole, Mr. Gordge pointed out that there were only five compulsory trades to which section 11 of the Apprenticeship and Tradesmen's Qualification Act applied, namely, sheet metal worker, air-conditioning, refrigeration, plumbing and steamfitting, and electrical.
In view of the foregoing explanation of the operation of the regulations under the Apprenticeship and Tradesmen's Qualification Act it is clear in the present case that the concern of the Board in the Irvcon case does not apply in the present case. Simply put, neither that Act nor the regulations under that Act make it unlawful for any person whether qualified or not to work as a glazier or metal mechanic. It is thus clear, therefore, that the three employees could lawfully work as glaziers and the employer could lawfully employ them as glaziers in the present case.
Since the three employees could lawfully be employed as glaziers the question then remains, are they employees falling within the list of employees in a bargaining unit of glaziers and glaziers' apprentices? That is, to put the respondent's position at its broadest, how can persons who cannot be individually classified as glaziers or apprentices be included on a list of employees in a bargaining unit of glaziers and glazier's apprentices?
In this regard, counsel for the applicant pointed out that as a result of the Board's interpretation of section 144(1) of the Act in the Clarence H. Graham Construction Limited 119811 OLRB Rep. Sept. 1195 decision the applicant was constrained to apply for a bargaining unit of employees "who would be included in a provincial agreement", thus, for instance, the applicant could not apply for a group of construction labourers or window installers and helpers, or indeed, an all employee engaged in construction as suggested by the respondent as the appropriate bargaining unit for the employees in this matter. Counsel for the applicant thus argues that since the applicant can only apply for a bargaining unit of glaziers and glaziers' apprentices section 144(1) cannot reasonably be interpreted to prevent the applicant from organizing unorganized employees in its trade.
The conundrum raised by the respondent, namely, how can employees who are not glaziers be on a list of employees in a bargaining unit of glaziers raises, quite specifically, the question of, what does the Board mean when it refers to a bargaining unit of "glaziers and glaziers' apprentices."?
Many of the construction bargaining units found to be appropriate in the construction industry are findings of an appropriate craft bargaining unit under section 6(3) of the Act. This was so even prior to specific amendments dealing with certification in the construction industry were first introduced into the Act in 1962. Subsequent to the introduction into the Act of specific provisions for construction certification, the Board developed a policy of referring to the employees in terms of the construction trade or trades at work on the job site. Thus, for instance, an industrial union operating in the construction industry and required to take all employees, receives a bargaining unit that is described not in terms of all employees of the employer, but rather in terms of the construction trades on the job site. (See, A. K. Penner & Sons Ltd. 11966] OLRB Rep. Oct. 493). Further, the craft structure of the construction industry has been noted in a number of decisions dealing with the Board's discretion to allow the "carve out" of a craft from a larger unit. Thus, in the Kent Tile & Marble Co. Ltd. case [19611 CLLC ¶16,204 the Board pointed out that the organization of the construction industry has traditionally been along craft basis and that great weight should be given to such interests. Following the Kent Tile & Marble Co. Ltd. case, the Board has allowed "carve outs" from larger units by the operating engineers, Elwood Robinson Limited [1967] OLRB Rep. June 261, and by the painters for a unit of plasterers in Can wall Contractors Limited [19751 OLRB Rep. July 532. What emerges therefore is a very clear reference to construction trades as the appropriate generic term when determining who is included in a bargaining unit. Notwithstanding this clear intention by the Board to describe bargaining units in terms of construction trades, there have been numerous examples of bargaining units in the construction industry where the Board was forced to resort to a formula which said "all employees engaged in . . .". In this regard, the Board's recent case of Ninco Construction Ltd. 119821 OLRB Rep Nov. 1692 clearly sets out the Board's desire to use the various construction "trades" as the appropriate manner for determining the basic inclusion of people in the bargaining unit rather than referring to employees engaged in certain work.
The confusion which gives rise to the present case stems in large measure from the confusion of the two terms "construction trade" and the term "craft". As noted earlier, a large number of the construction unions are in fact craft unions. That is, they are capable of meeting the requirements set out in section 6(3) of the Act dealing with craft severance, and the entitlement to a craft unit. In cases involving section 6(3) the technical skills which distinguish the individual employees are part of the criteria which the Board uses to determine craft status and, in such cases training, qualifications, work experience of the individual employees become a critical element in a trade union's attempt to prove its status under section 6(3) of the Act. In such cases, therefore, the fact, as in the present case, that the three employees involved as individuals were not trained glaziers could become a relevant consideration. The term "construction trade" is a much looser term. Thus, when the Board talks of certifying for a trade or trades that work on the job site the test which has traditionally been applied is to examine the work being performed by the employees. Thus, in the present case, the fact that the employees concerned are performing work which is normally performed by glaziers indicates that they were performing work falling within the trade of glaziers and, therefore, they are employees in the list of employees in the bargaining unit.
Having regard to the foregoing, the Board therefore finds that on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 20, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
(emphasis added)
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 2 of the Board's decision dated November 22, 1982 in respect of glaziers and glaziers' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all glaziers and glaziers' apprentices in the employ of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.